1. you will be approved
2. you will be denied
3. your case will be continued to another date for a supplemental hearing
4. the judge will issue a "partially favorable" decision

Over the past couple of years I have noticed an increase in the number of partially favorable decisions I am receiving.  I think this is because my clients, especially low income clients, do not have access to regular medical care and judges are using consultative exam reports to move the alleged onset dates.

Here is an example of what I mean:  a couple of weeks ago, I tried a case before a judge who is generally considered to be very reluctant to approve cases.  At the time of the hearing my client was a month shy of her 52nd birthday.  She had a 10th grade education and past work as a short order cook.  She alleged disability due to uncontrolled diabetes, numbness in her feet and hands, vision issues and pain.

She last worked 3 years previously, when she was 48 years old.

In reviewing this case, I saw it as a "grid rule" case.   Grid rule 201.10 provides that a 50 year old claimant with less than a high school education, semi-skilled work but no transferable skills who was limited to sedentary work due to an exertional limitation would qualify for disability.

My client had very little money and had last seen a doctor almost 2 years previously.   In addition to the older medical records, there was a consultative examination report from February, 2008 that supported my argument.  My client turned 50 in October, 2007.

At the beginning of the hearing, I advised the judge that we were prepared to amend our onset date to my client's 50th birthday in October, 2007.

I just received the decision and what did the judge do?  He issued a partially favorable decision, approving my client as of February, 2008 – the date of her consultative examination.   I think that any reasonable observer would recognize that my client's condition did not change between October and February.  The net result is only 2 months of past due benefits – but that means about $1,500 to my client.

In my view, the judge's actions were absurd and perhaps a little mean spirited.  During the hearing he made it known that he was not happy with the claimant's pack a day smoking habit (he noted that if she saved the money she spent on smoking she could afford to visit her doctor).

The point here is that when you don't find a way to go to your doctor, or enlist the help of a treating doctor to identify your work limitations, you may find that your judge will pick a date later than the onset date you alleged.  In fact, I know many judges who will always choose onset dates that correspond with a particular medical report.

I think that tying an onset date to the date of a medical report can be a logical choice but such a practice should not be applied mechanically as it was in this case.

You need to be aware of this tendency and make every effort to develop a thorough and convincing medical evidence file so you won't be subject to what could be the arbitrary choices of your judge.

Post from: Social Security Disability Blog

Onset Dates, Consultative Exams and Cynical Judges

I presented all three to our judge, and the judge decided to approve based on….(you'll have to read the case study to find out).

Not surprisingly the judge looked very favorably on my client's long, consistent work history.  The judge even put on the record his opinion that my client would never have stopped working but for his medical issues.  As I note in the case study, the medical record in this file was a little sparse – but a solid work history can go along way to greatly enhance a claimant's credibility.

One of the arguments I had at the ready (although I did not have to use it) was the "frequent restroom break" problem associated with a drug called Lasix, that helps clear fluid from the bodies of patients with congestive heart failure.  Many of my clients are surprised to learn that I often win cases on the work performance problem of needing to go to the restroom several times an hour.   Although excess restroom breaks don't sound like a medical issue, the practical import of this problem is excess missed time from work.

Post from: Social Security Disability Blog

Heart Disease Case Study Posted

Jane, my girlfriend of 25 years (54 yrs old) has been diagnosed with Type I Diabetes for 35 years. She has had a number of problems over the years (uncontrollable diarrhea, Retinopathy, Neuropathy) all of which were more or less under control until recently. She has suffered a massive hemorrhage in one of her eyes and is completely blind in one eye. The eye may be able to be helped by surgery but one thing is for certain it will never be as good as it was 3 weeks ago.  Jane has been employed as a land surveyor (self employed last 10 yrs) for 30 years and it is very difficult to carry on with the physical impairments brought on by diabetes.  Given her age I would very much like to get her on a government sponsored disability program so as to supplement my earnings while waiting for SS retirement to kick in at age 62. Do you think I have any chance of this? Given your experience which of the numerous symptoms of diabetes are the easiest to document for a SSDI claim?

Here are my thoughts: under Social Security's definitions, Jane is "closely approaching advanced age" and has a skilled work background, and quite possibly transferrable skills.   Her educational background is not mentioned but I will assume that she has a college education.  As such, it is unlikely that any of the medical-vocational guidelines (the grid rules) will apply.

I would therefore analyze her case as being one that either meets or equals the diabetes listing, or I would use an argument that her functional capacity for work has been so impaired by her diabetes and complications that she would not be a reliable worker.

In my experience, because Social Security judges see so many instances of diabetes it is very difficult to win a "listing" argument unless the retinopathy or neuropathy has become extremely severe and irreversible.  I have won a few diabetes listing cases but only when my client is a "brittle diabetic" who cannot keep his blood sugar under control with insulin or even an insulin pump.

Jane's hemorrhage suggests that the retinopathy has become severe, but I would not assume that the hemorrhage alone is sufficient to win a listing argument.

Based on what you write, I am thinking that a "functional capacity" argument would give her the best odds for winning.  Functional capacity arguments look to reliability factors – such as the need to take unscheduled breaks, missed time from work, the need for unscheduled bathroom breaks, loss of capacity concentrate and focus, etc.   If you can find a treating doctor to support her claim by filling out a functional capacity checklist that identifies significant work activity limitations, she has a good argument.

I think that her long and consistent work history works in her favor as does her perseverence in fighting through uncomfortable symptoms.

Post from: Social Security Disability Blog

What Factors Does Social Security Consider in a Diabetes Disability Case

I summarized the various case strategies that I use in multiple sclerosis cases on my Georgia Social Security Disability web site so I will not repeat that detailed summary here.  A couple of points that do jump out at me:

• because MS is a disease that progresses through a series of flare-ups and remissions, it is not uncommon for my client to experience periods of functioning that could allow for minimally physically demanding work. I get past this issue by eliciting testimony from my client that stress from attempting to work (including preparing for work, traveling to work and performing work) can cause a remission period to shrink, and that my client's functioning during a remission period is enhanced by staying in a comfortable, familiar home environment
• ideally, an MS case file should contain doctor or ER visits in intervals of 3 months or less. However, if you cannot afford treatment or otherwise do not go to your doctor that often, a personal diary detailing symptoms can serve as viable evidence
• judges recognize that MS is a degenerative condition that does not improve over time. There are a number of neuromuscular diseases related to MS that may comprise your diagnosis. It is important to have your doctor reference that your associated disease falls within the MS family

I also found that in each of the cases I tried, my clients came across as exceedingly credible – people that had long, consistent work histories and who clearly would prefer to land back in the work force. In many ways, your credibility as a claimant serves as the foundation for your case and the combination of believable testimony, a definitive diagnosis with known, serious symptoms and a solid work history makes for a disability case that will likely succeed.

Post from: Social Security Disability Blog

Strategies for Winning Multiple Sclerosis Disability Claims

I just got unfavorable decision for my SSI Disability and I can hardly walk or use my hands. I have RA and my doctor said I was permanently disabled. So why am I being denied?
- LaTrica

My response: LaTrica, firstly you should understand that there is an appeal you can filed to challenge the unfavorable decision.  In most jurisdictions, the appeal would be to the Appeals Council in Falls Church, Virginia.   In some limited jurisdictions the appeal would be directly to federal district court.

Either way, you should speak with your attorney about filing the appropriate appeal.  Your appeal needs to be filed within 60 days, so don't delay.   You should also speak with your attorney about filing a new claim for benefits.

Appellate work and new filing strategies should not be pursued without the aid of an attorney.   With regard to the appeal, there are some lawyers who specialize in post-ALJ hearing appellate work.   If your lawyer does not regularly handle appeals, you should ask for a referral.  Whatever you do, don't wait until the last minute.

As far as why your case was denied, there could be many reasons that your judge relied upon:

• did you have a definitive diagnosis of RA from a rheumatologist, or did your internist or an emergency room physician suggest that you might have RA?
• is there evidence of substance abuse that served as a "material contributing factor" to your inability to work?
• was the judge arbitrary and unreasonable?
• are there medical reports in your file that suggest you are a malingerer, a drug seeker, or that you are exaggerating your limitations?
• did your lawyer fail to develop testimony that painted a true picture of your limitations?
• was there a lack of convincing support from your treating doctors?

Every case has some strengths and some weaknesses.   The judge is supposed to set out clearly his reasons for turning you down.   A good appellate lawyer will identify weaknesses in the judge's reasoning and find an angle to attack the logic of the decision.

I can only imagine how frustrating it must be to receive an unfavorable decision when your medical condition truly limits your ability to function.  Best of luck to you.

Post from: Social Security Disability Blog

Rheumatoid Arthritis Claimant Gets Denied – What Can She Do Next

My on-the-record request also serve as a pre-hearing brief for case that is on my calendar.  However, if I can convince the judge to approve my case without requiring me to drive or take the train downtown, my client can avoid the stress of appearing at a hearing and I can save myself several hours of time.

Recently I was schedule to try a case involving a 63 year old woman with documented back issues, diabetes and a neuromuscular disease similar to multiple sclerosis.  She was already receiving early retirement benefits, so the only issue was whether she was entitled to past due benefits from age 59, when she stopped working through age 62, when she began receiving early retirement benefits.

In my view this was a fairly clear cut case and there were several arguments to support our claim.  I set out my arguments in an on-the-record decision and emailed it to the judge, who I knew to be a fair and reasonable person.   A few days after I submitted my request I received an email back advising me that the judge was prepared to grant this claim.

The judge agreed to let me appear telephonically so on the morning of the hearing, the hearing assistant called me and we recorded a 5 minute hearing in which the judge announced his favorable bench decision.   Since I was at home that morning, I "appeared" by telephone while I was sitting in a comfortable chair in my t-shirt and gym shorts.

I redacted the personal information from the case, and published my on-the-record request on one of my Georgia Social Security disability web sites.   Click the link to read my argument.

Post from: Social Security Disability Blog

Sample On-the-Record Argument Available for Your Review

I see this a lot among self employed people, or salespeople who are paid in cash and do not have money withheld for Social Security taxes.   Here is an email I received from the wife of such a claimant:

I have worked and paid into social security since 1965.  My husband worked on and off for the past 30 years, but has not regularly paid in to social security.  Ten years ago he was diagnosed with MS and he has been unable to work at all.  I went to Social Security to ask if I could get disability payments for him and they told me that I earned too much money ($45,000 annually).  I am now about to retire at age 60 and would like to collect disability for him.  I've gone through web searches and there is such a mire of information – I don't know where to begin.  Can he collect against the money I've paid in?  He is completely dependent on me.

Jonathan's response: unfortunately I think that you are out of luck. If your husband did not earn enough quarter hours of credit, he is not "insured" for Title II disability.  He cannot claim disability based on your earnings record and your earnings will effectively offset any claim he might have for SSI.

You may want to request an earnings and benefit statement (form 7004) to determine if there was every a point where he was insured for Title II disability.  If he was insured at one point and you have medical support to argue that he was unable to work at that point in time, he could collect from SSDI.

Often, Social Security representatives will look to see if a potential claimant is currently insured.   However, this does not take into account that some people wait two, three, four or more years after "becoming disabled" before they apply.  If you know your "date last insured" for Title II and your "onset date" (the date you meet the definition of disability) is prior to your date last insured, you can still collect, even if you are not insured at the time you apply.

Post from: Social Security Disability Blog

Can Claimant With Sporadic Work History Collect on Working Spouse's Earnings Record?

Recently, I received an email from a gentleman named Michael who asked for some additional information:

I have narcolepsy and even the maximum doses of medications don't help. I keep losing jobs and will be losing my current job due to this. I do exceptionally well at my job when I feel alright, but I spend at least twenty hours of the day not functional. I'm currently telecommuting full-time and I still can't stay awake and clear long enough each day to do my work. When I work on-site at a job, people accuse me of being an alcoholic or drug addict because I look terrible and slur my words and fall asleep several times per day. The only thing that prolongs my jobs is that when I'm feeling alright, I am sharper than most and unusually productive. So, they smell my breath and check my arms for tracks and I try to convince them that I'm just tired and that usually suffices for a while, but once again I'm losing my job. I am getting worse as I get older and I can't maintain myself or watch my own child or regularly brush my teeth, etc. It's a horrible situation and I'm looking at losing everything (job loss) and I don't think I will be able to recover my finances this time because my narcolepsy is getting so bad. How could I get disability for this? What happens if a treatment comes around that works, can I get back off disability? If I can somehow start a business and hire other people to do the work in order to get off disability, would I be penalized for trying to get off disability? Even working full-time telecommuting, I get accused of being drunk or using drugs because I randomly sound drunk or on drugs even over the phone. It is so frustrating. Please advise as to what options I have, if any, and thank you for writing something up on the web about this.

Here are my thoughts: Yes, narcolepsy can be the basis for a Social Security disability claim.  Please refer to my August, 2006 blog post referenced above.   If a new treatment is developed, you may absolutely terminate your disability – in fact, if you return to work you are required to notify the Social Security Administration.

SSA encourages disabled claimants to try to return to work.  You are eligible for a trial work period of up to 9 months in which you continue to collect your full benefit even while working, and you are eligible for an extended period of disability, which expedites your return to disabled status if you are unsuccessful in your return to work (after your 9 month trial work period).  You can read more about trial work periods and the extended period of disability by clicking on the link.

I would be careful about the home based business idea.  As I have said on many occasions, Social Security sees disability in black and white terms – either you are or you are not.  If you perform part time work, or if you manage a profitable business part time, you will have an uphill battle convinciing Social Security that you are not engaged in "substantial work."

Let me also suggest to Michael that he look into his rights under the Americans With Disabilities Act.  Under this law, covered employers are required to make "reasonable accommodations" for workers with certain medical conditions.  I am not an ADA lawyer but I think that this law may have some applicability here.

Bottom line – for Michael, he may very well have a viable narcolepsy disability claim.  That claim will have the best chance of success if he is not working while the claim is pending and if he gathers medical, employment and personal observation evidence to support his claim.

Post from: Social Security Disability Blog

What Strategy Should Narcolepsy Claimant Use to Win Benefits?

During our meeting, my client mentioned how frustrating it has been for her to wait over 2 years to get a hearing and she asked me if this type of delay was typical.  My initial response was that fibromyalgia cases were rarely approved at the administrative (initial application or reconsideration) levels because there is no "listing" for fibromyalgia and adjudicators at the State Agencies did not have the expertise or authority to issue early approvals.

After my client left, I thought more about my response – is it possible for a fibromyalgia claimant to get an early approval from a State Agency adjudicator?

I think that it is possible, but a claimant would need strong support from her treating physician.  As I have discussed before on these pages, there are several "theories" or arguments under which a claimant can win his/her case.  The Listing argument constitutes the most straightforward theory.  If your condition meets or equals a Listing, you have consistent and extensive medical treatment records, and your doctor will prepare a narrative or complete a form that tracks the listing, and you make the adjudicator aware that a listing is involved, you greatly improve your chances at an early approval.  Do not, by the way, assume that the adjudicator will recognize your case as a "listing level" case – you need to make that argument clearly when you submit your paperwork.

If there is no listing that describes your condition (such as fibromyalgia), you will need to argue for disability based on another theory.  If you are 50 years old or older with a physical impairment, a limited education and a limited work skill background, you should look at the "grid rules" to see if you can be found disabled based on the grids.  Grid based decisions do not call for judgment and State Agency adjudicators will issue favorable decisions in grid cases.  Here, too, you need to point out that your case is a "grid" case and identify the specific grid.

Fibromyalgia cases can fit within the grids, although my experience has been that most fibromyalgia patients are high acheiving, Type A individuals who often have too much education and work skills to fit neatly within the grids.

If you do not meet a listing or a grid, you're remaining argument will be a "functional capacity" argument.  It has been my experience that State Agency adjudicators do not often approve cases arising from functional capacity limitations because reaching a conclusion about a claimant's "residual functional capacity" is a legal decision that requires judgment and adjudicators are not given much authority to make quasi-judicial decisions.

However, if you submit a completed functional capacity evaluation from a treating  physician (or two, or three) along with treatment notes, along with a request that the adjudicator take that functional capacity evaluation to the non-examining State Agency medical consultant and/or the adjudicator's supervisor, there is a chance that your fibromyalgia case can be flagged for special review.

I hope you have picked up on a theme in what I have written about dealing with the State Agency adjudicators.  You cannot and should not assume that they will find a reason to approve your case.  You need to politely suggest a direction for their actions.  You need to lay out very clearly your argument for disability and you need to explain why a particular item of evidence is particularly relevant.  Finally, you need to realize that the State Agency adjudicators are overworked and underpaid and that they are given limited authority.  Do not hesitate to ask your adjudicator to take your file to a supervisor or to a medical or psychological consultant in the State Agency office.

Post from: Social Security Disability Blog

Is it Possible to Get an Early Favorable Decision in a Fibromyalgia Case?

I save hearing decisions in the cases I try.  Fortunately I usually choose decent cases and I don't have too many unfavorables, but not every case turns out to be a winner.  Interestingly, when looking at the unfavorables as a group, certain trends emerged.  Perhaps the most common thread had to do with gaps and inconsistence in medical treatment.

Here is the actual wording from one such decision in a case involving a woman with depression and anxiety:

Although the claimant's anxiety is severe, she has had no significant amount of mental health treatment.  Even though she has been in the Atlanta area, she has had no psychiatric treatment.  Had she obtained treatment, her anxiety would not be severe.  Her husband is working, so there is no apparent reason she could not seek mental health treatment if she chooses to do so.

In this particular case, the medical record was not particularly strong and the claimant's treating doctor was unwilling to provide us with a completed functional capacity form.  I find it interesting that the judge would focus on what was not there, rather than what was there.  Could there be legitimate reasons why an individual would not seek mental health treatment?  Is it fair to assume that the husband's insurance would cover psychological or psychiatric treatment, or that the deductibles would be affordable?

I think that the lesson to learn from cases like this relates to the need for every claimant to build a "paper trail" of medical treatment records.  Judges expect you to see your doctor regularly and to seek specialized help when necessary.  If you don't have a lot of money,you need to explore all options – local emergency rooms, public hospitals, free clinics.  I think that the days are over when a claimant can win a hearing with a medical record that is less than an inch thick.

I am certain that there are many deserving claimants out there who truly are disabled, but who will be denied because the medical record is sparse.  This may not be fair, but this is how the system works.

Post from: Social Security Disability Blog

How Gaps in Medical Treatment Can Result in an Unfavorable Decision